Congress needs to act to restore the balance of power and prevent future administrations from undermining legislative intent and wreaking havoc on the lives of so many Americans that depend on a functioning immigration system. This means taking back the power of the purse when it comes to immigration benefits and creating Article I courts to review agency decisions.
The Power of the Purse: USCIS Should Not Be Self-Funded
At the end of June, USCIS announced plans to furlough more than 75% of its staff to make up for budget shortfalls. Shortly before the holiday weekend, approximately 13,400 USCIS employees received notice that as of August 3 they would be placed in non-pay, non-duty status for 30 to 90 days, with a possibility of extension beyond 90 days. These furloughs are expected to be extended until Congress provides the requested $1.2 billion, a total that represents 25% of USCIS’s annual budget.
While the agency claims the shortfall is “caused by the COVID-19 pandemic”, its budget problems are the result of Trump Administration policies that led to falling application rates and increased spending on vetting. USCIS is funded almost entirely through application fees. The most recent fee hike, in 2017, resulted in a weighted average increase of 21% across all applications. In December, the agency proposed a troubling new fee structure that includes an 83% increase in naturalization fees, introduces a new fee for asylum applications, eliminates the fee waiver program, and transfers $100 million from adjudication services towards enforcement by USCIS sister agency, ICE. USCIS’s fee structure has historically been used as a policy tool; however, the Trump Administration is using this tool to limit legal immigration by running the agency into the ground.
First, the administration enacted policies to significantly reduce the number of applications. This includes going against State Department recommendations to cancel Temporary Protective Status for six countries affecting more than 300,000 people who can no longer file renewal applications. This led to a 91% decrease in filings over a two-year period from 2017 to 2019. Further, the administration’s policies and rhetoric around family-based immigration have led to a 29% decrease in immediate family member petitions and a 43% decrease in petitions for other relatives from 2017 to 2019. The sharp decline is attributed to fears surrounding the proposed public charge rule, more stringent sponsorship requirements, and new interview requirements. More recent COVID-19 bans on the issuance of family-based visas only exacerbated the problem.
While driving down revenue, the administration has increased costs. Executive order 13780, “Protecting the Nation From Foreign Terrorist Entry Into the United States” mandated in-person interviews for employment-based green card applications and petitions for relatives of asylees and refugees. The additional vetting has led to a near tripling of the budget, from $53 million to $149 million from 2016 to 2020. Further, fraud detection costs more than doubled in the same period.
The intentional mismanagement of the USCIS budget is likely to prove to be the most effective way to significantly reduce legal immigration to the United States. In early August, the agency will go from about 20,000 employees to 5,000. Furloughed government employees cannot just pick up a second job or accept gifts without consulting with the agency’s office of ethics. This means the highly-skilled immigration officers, many of whom hold law degrees or other advanced degrees, would be unable to seek employment that utilized their skillset. Many will choose to leave the agency rather than wait indefinitely.
With a reduced workforce, processing delays, which have already reached crisis-level, are going to increase. It is not just the processing of new applications. In June, USCIS made the decision to cancel their contract with an outside vendor for the production of greed cards and employment authorizations and to bring the printing in house. Budget issues led to short staffing and of the two facilities UCIS planned to open, only one is currently operating at redacted capacity. A process that used to take days is now stagnant, no one knows when to expect to receive their cards.
The problem of a self-funded immigration benefits agency goes beyond executive overreach; it is unethical even in the best administrations. It is one thing to require the payment of a processing fee; it is quite another to ask ordinary immigrants to pay for wasteful fraud detection programs. Much like it is unjust, inefficient, and irrational to place the burden of policing onto the policed, it is similarly so to make immigrants pay ever-increasing fees for misplaced fraud detection and unnecessarily heightened scrutiny.
A closer look at fees for the N-400, the application for naturalization, reveals both sides of the problem. The administration proposed an increase in N-400 fees from $640 to $1,150-1,170. At the same time, USCIS directed more effort and money towards a program to revoke the citizenship of individuals suspected of obtaining their benefits through fraud. In the 2019 budget, ICE shifted $207 million of their budget to USCIS to support investigations into 887 leads and to review another 700,000 applications for revocation of citizenship. American citizenship has historically offered a welcome sense of security and belonging. Asking people to pay more for a less stable benefit is unjust; money for enforcement and fraud detection should come from Congress not those seeking benefits.
Finally, making immigrants pay the majority of the costs of running the American immigration system makes the cost of adjustment and naturalization untenably high for many individuals. High costs and fear keep many from seeking the immigration benefits for which they are eligible. Anecdotally, I have met many people who are married to US citizens and eligible for a green card; however, their status expires and for years they live in the US without authorization while trying to save the thousands of dollars necessary to legalize their status. The longer they remain out of status the more they fear a denied application will result in deportation and family separation. The same phenomenon can be seen in naturalization, where people who want to become citizens remain permanent residents because they cannot afford to take the final step to become Americans. Making immigrants bear the full cost of administering America’s immigration policy prevents many who are already living, working, and raising families in the United States from becoming fully included members of our civic community.
Article I Courts: Congress Should Have the Power to Review Agency Decisions
The budget is not the only tool the executive branch uses to undermine immigration law. Immigration courts are part of the Department of Justice (DOJ) and overseen by the Attorney General (AG). The judges are actually government lawyers without the tenure protections of Article III Federal Judges. Immigration judges (IJs) can be fired or relocated at the discretion of the Attorney General, political goals shape immigration court policies, and under-resourcing coupled with case completion quotas weaken due process.
Executive branch interference is a real problem in immigration courts. Attorney General Barr has told immigration judges to stop releasing asylum seekers on bail, ended the ability of IJs to administratively close cases while awaiting visa decisions, used the certification process to intervene in unremarkable asylum cases, and has authorized the head of the Executive Office of Immigration Review (a political appointee not confirmed by the Senate) to override IJ decisions or issue decisions in pending cases. In addition, the AG uses the power of appointment to promote IJs with high asylum denial rates (over 90% compared to the national average of 57%) and two who have been the subject of 11 complaints, including repeated complaints from the Southern Poverty Law Center regarding how they conduct hearings and their treatment of immigrants.
Recently, the Chief Immigration Judge, Christopher Santoro, resigned. In an email to staff and colleagues, he wrote:
But for the public to trust a court system, for the public to believe that a court is providing fair and equitable treatment under the law, that court system must not only dispense justice impartially but also appear to be impartial. Maintaining the appearance of impartiality and fairness can often be more difficult than being impartial and is a goal each of us – regardless of our role – must strive for every day.
Santoro was quickly replaced by Tracy Short, a lead prosecutor for ICE. America’s immigration courts do not appear impartial and fair.
In addition to hindering the court’s independence, the fact that the immigration courts are part of the executive branch leaves them prone to political interference. It is common practice for administrations to issue new priorities to the immigration courts, a practice that results in docket shuffling and increasing backlogs in the courts. Docket shuffling includes creating new dockets to address enforcement priorities, for example, the “family unit” docket to fast-track recently arrived families. Docket shuffling can also be used to determine the outcome of a case by sending it to an IJ more likely to deliver a preferred ruling. Arbitrary docket reshuffling creates further backlogs in the immigration courts. Currently, the immigration courts have a backlog of over 1 million cases with an average case completion time of two years or more.
Finally, DOJ’s immigration courts are not able to ensure due process. The lack of judicial independence and political interference in the dockets have eroded access to due process. Not only does docket shuffling create longer backlogs, but it also means the newly prioritized cases have less time to prepare for court. The court has been accused of docket shuffling to punish immigration attorneys the IJs don’t like. The AG introduced case quotas of 700 completed cases per year for IJs. The National Association of Immigration Judges has pushed back on the quotas, which they say the DOJ has provided no justification for and are counter to the court’s independence and its ability to ensure due process.
The American Bar Association has been calling for independent immigration courts since 2006. The American Immigration Lawyers Association recently testified before Congress and submitted a policy brief to restore independence and integrity to American immigration courts. Over 50 rights groups have called on Congress to create an independent Article I immigration court. The Federal Bar Association has introduced model legislation for such an entity. Congress, not the DOJ, should be overseeing our nation’s immigration courts.
Restoring Balance of Power
This administration has shown that too much of our immigration system is governed by the whims of the executive branch. Congress needs to act to pass comprehensive immigration reform that prioritizes Congressional oversight of immigration agencies, through the power of the purse and Article I Immigration Courts.
Anne Bloomberg is a law student at University of Pittsburgh School of Law and a staff writer for JURIST. She has a Ph.D. in Sociology from the University of Virginia and studies the boundary of rights, access to justice, and the rule of law.
Suggested citation: Anne Bloomberg, Rebalancing Power in the American Immigration System, JURIST – Student Commentary, July 17, 2020, https://www.jurist.org/commentary/2020/07/anne-bloomberg-uscis/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
